This is
my decision on Tiera Smith's ("Smith") Motion
for Postconviction Relief. Smith shot and killed Charles
Smith (the "Victim") while he was sitting in his
car with his girlfriend and two other friends in the parking
lot of an apartment complex in Seaford, Delaware. Smith also
shot and injured the Victim's girlfriend. Smith then fled
the scene in her car. Smith was arrested two days later in
Georgia and extradited to Delaware. The Grand Jury indicted
Smith on one count of Murder in the First Degree, Assault in
the First Degree, and Possession of a Deadly Weapon by a
Person Prohibited, two counts of Reckless Endangering in the
First Degree, and four counts of Possession of a Firearm
During the Commission of a Felony. Smith was represented by
an attorney with the Office of the Public Defender
("Trial Counsel").

Smith
pled guilty before me to Murder in the Second Degree, Assault
in the First Degree, and two counts of Possession of a
Firearm During the Commission of a Felony on August 22, 2008.
I ordered a presentence investigation. I sentenced Smith to
life in prison on the Murder in the Second Degree count, 25
years in prison on the Assault in the First Degree count, and
25 years in prison for each count of Possession of a Firearm
During the Commission of a Felony on December 5, 2008. In
total, Smith received a sentence of life plus 75 years in
prison.

Smith
filed a pro se appeal with the Delaware Supreme
Court on January 6, 2009, but soon thereafter, based upon the
advice of Trial Counsel, withdrew her appeal. Trial Counsel
then filed a motion for modification of sentence on February
27, 2009. I denied it on March 30, 2009. Smith then filed a
pro se Motion for Postconviction Relief consisting
of six claims on March 24, 2014. I assigned counsel to
represent Smith on April 1, 2014. Smith filed an amended
Motion for Postconviction Relief on June 15, 2015. I held
evidentiary hearings on June 1, 2, and 13, 2016. Trial
Counsel, Beth Cahill, Cintoria Jacobs, Smith, and Josefina
McGinley testified at the evidentiary hearings. Beth Cahill
is a mitigation specialist retained by Smith for her
postconviction efforts. Cintoria Jacobs is Smith's
significant other. Josefina McGinley is an investigator in
Trial Counsel's office. The parties then submitted
additional briefing.

Discussion

Smith
alleges that Trial Counsel was ineffective in his
representation of her. Procedurally, Smith's Motion for
Postconviction Relief must comply with Superior Court
Criminal Rule 61. Rule 61(i)(1) provides that a "motion
for postconviction relief may not be filed more than one year
after the judgment of conviction is final..." Smith was
sentenced on December 5, 2008. Smith originally filed a
pro se appeal but withdrew it based upon the advice
of Trial Counsel. Smith's judgment of conviction became
final on January 5, 2009. The deadline for filing a
postconviction relief motion was January 5, 2010. Smith filed
her pro se Motion for Postconviction Relief on March
24, 2014, or slightly over four years after the cut-off date.
Therefore, Smith's Motion for Postconviction Relief is
barred by Rule 61(i)(1) unless there is an exception to the
procedural bar.

The bar
to relief under Rule 61(i)(1) does not apply to a claim that
"the court lacked jurisdiction or to a colorable claim
that there was a miscarriage of justice because of a
constitutional violation that undermined the fundamental
legality, reliability, or fairness of the proceedings leading
to the judgment of conviction."[1]There is no allegation that
the Court lacked jurisdiction. "Colorable" claims
encompass any constitutional violations that, if proven,
would arguably require vacating the judgment of conviction or
sentence.[2] The "miscarriage of justice" or
"fundamental fairness" exception is a narrow one
and has been applied only in limited circumstances, such as
when the right relied upon has been recognized for the first
time after a direct appeal.[3] This exception may also apply to
a claim that there has been a mistaken waiver of fundamental
constitutional rights.[4] Smith alleges that Trial Counsel's
performance, or lack thereof, amounts to a colorable claim
that there was a miscarriage of justice because, but for
Trial Counsel's errors, she would have 1) not pled guilty
and gone to trial where her self-defense claim would have had
a strong likelihood of success, and/or 2) pled guilty to
manslaughter and gotten a shorter sentence. Smith has alleged
enough facts, if true, to make procedural dismissal
inappropriate under Rule 61(i)(1).

Ineffective
Assistance of Counsel Allegations

Smith's
Amended Motion for Postconviction Relief alleges that Trial
Counsel was ineffective because he failed to 1) investigate
her self-defense claim, 2) investigate and present mitigating
evidence at her sentencing, 3) file an appeal of her
sentence, 4) effectively present her motion for modification
of sentence, and 5) promised her that she would only receive
a 23-year sentence. Smith's pro se Motion for
Postconviction Relief alleges that Trial Counsel 1) coerced
her into accepting the plea agreement, 2) failed to argue
distress so that she would have only been charged with
Manslaughter, 3) allowed her to plead guilty to Murder in the
Second Degree and Assault in the First Degree and two related
counts of Possession of a Firearm During the Commission of a
Felony when her conduct did not fall within those offenses,
4) failed to raise double jeopardy and merger, 5) should have
filed an appeal of her sentence instead of seeking a
modification of it, and 6) should have allowed her to proceed
with her pro se appeal so that she could have raised
claims of ineffective assistance of counsel.

The
Applicable Law - Generally

The
United States Supreme Court has established the proper
inquiry to be made by courts when deciding a motion for
postconviction relief.[5] In order to prevail on a claim of
ineffective assistance of counsel pursuant to Superior Court
Criminal Rule 61, the defendant must show: "1)
counsel's representation fell below an objective standard
of reasonableness; and 2) counsel's actions were so
prejudicial that, but for counsel's error[s], the
defendant would not have pled guilty and would have insisted
on going to trial."[6] Further, a defendant "must make
and substantiate concrete allegations of actual prejudice or
risk summary dismissal."[7] It is also necessary that the
defendant "rebut a 'strong presumption' that
trial counsel's representation fell within the 'wide
range of reasonable professional assistance, ' and this
Court must eliminate from its consideration the
'distorting effects of hindsight when viewing that
representation.'"[8] There is no procedural bar to claims of
ineffective assistance of counsel.[9]

The
Applicable Law on Plea Negotiations

The
United States Supreme Court has held that the Sixth Amendment
entitles defendants to effective assistance of competent
counsel during plea negotiations.[10] The two-part
Strickland[11] test applies to challenges to guilty
pleas based on ineffective assistance of
counsel.[12] As with challenges to trial performance,
the performance prong of Strickland requires a
defendant to show that "counsel's representation
fell below an objective standard of
reasonableness."[13] In the context of pleas, however, the
prejudice prong requires a defendant to "show the
outcome of the plea process would have been different with
competent advice."[14] "In other words, in order to
satisfy the 'prejudice' requirement, the defendant
must show that there is a reasonable probability that, but
for counsel's errors, [s]he would not have pleaded guilty
and would have insisted on going to
trial."[15]

The
Supreme Court has elaborated on what is required to make such
a showing in different contexts, noting:

Where the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence, the
determination whether the error "prejudiced" the
defendant by causing him to plead guilty rather than go to
trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his recommendation
as to the plea. This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would
have changed the outcome of a trial. Similarly, where the
alleged error of counsel is a failure to advise the defendant
of a potential affirmative defense to the crime charged, the
resolution of the "prejudice" inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.[16]

Smith
claims that Trial Counsel was ineffective for failing to
adequately investigate her self-defense claim.[17] She asserts
that because Trial Counsel was unprepared to try her case,
she was forced to take whatever plea the State offered. The
relevant questions to ask, however, are:

1) whether Trial Counsel's recommendation that Smith
plead guilty to Murder in the Second Degree was objectively
reasonable; and

2) whether further investigation into Smith's
self-defense claim would have led Trial Counsel to change his
recommendation as to the plea.

The
answer to both questions depends upon whether Smith's
self-defense claim would likely have succeeded at trial.

I have
concluded that Smith's self-defense claim would not have
likely succeeded at trial. Trial Counsel did a good job when
he persuaded the Prosecutor to offer Smith a plea to Murder
in the Second Degree. If Smith had gone to trial and lost,
which was most likely, she would have gotten a mandatory life
sentence. Through Trial Counsel's efforts, Smith only
faced a mandatory sentence of 23 years.

Argument
I

Trial
Counsel Failed to Investigate Smith's Self-Defense
Claim

Smith
alleges that Trial Counsel failed to investigate her
self-defense claim. Specifically, Smith alleges that Trial
Counsel did not 1) interview witnesses at the scene of the
shooting who would support her self-defense claim, 2)
interview witnesses who could provide information about
Smith's state of mind at the time of the shooting because
of various threats against her life, 3) use psychological
information to show Smith's state of mind at the time of
the shooting, and 4) interview witnesses who Smith had told
that she had shot the Victim but that it was in self-defense.

Prejudice

Smith
argues that if only Trial Counsel had done his job then:

1)her self-defense claim would have had a strong likelihood
of success at trial;

2) the State would have been inclined to let her plead guilty
to manslaughter; and

3)she would have gotten a shorter sentence.

Self-Defense

11
Del. C. §464(a) reads:

The use of force upon or toward another person is justifiable
when the defendant believes that such force is immediately
necessary forthe purpose of protecting the defendant against
the use of unlawful force by the other person on the present
occasion.

11
Del. C. §464(c) reads:

The use of deadly force is justifiable under this section if
the defendant believes that such force is necessary to
protect the defendant against death, serious physical injury,
kidnapping or sexual intercourse compelled by force or
threat.

11
Del. C. §464(e) reads:

The use of deadly force is not justifiable under this section
if:

(1)The defendant, with the purpose of causing death or
serious physical injury, provoked the use of force against
the defendant in the same encounter; or

(2) The defendant knows that the necessity of using deadly
force can be avoided with complete safety by retreating, by
surrendering possession of a thing to a person asserting a
claim of right thereto or by complying with a demand that the
defendant abstain from performing an act which the defendant
is not legally obligated to perform...

In
order to prevail on a claim of self-defense, the defendant
must show that "force was necessary and that [her]
response was an immediate reaction to a present
necessity."[18] A reasonable belief is not required;
rather, "[a]ll that is relevant to the actor's guilt
is that [s]he did honestly believe it necessary to use force
in [her] own defense."[19] It is the law that one who is
assaulted may take reasonable steps, including the use of
reasonable force, to repel or resist the
assault."[20] "In repelling or resisting an
assault, no more force may be used than is necessary for the
purpose, and if a person is assailed and uses in [her]
defense more force than is necessary for that purpose, [s]he
becomes the aggressor."[21]

Under
11 Del. C. §303, before a defense may be
considered by the jury, the court must first be satisfied
that the defendant has presented some credible evidence
supporting it. "Evidence supports a defense when it
tends to establish the existence of each element of the
defense."[22]

Delaware
applies a subjective test to determine whether the defendant
believed the use of force was necessary for
protection.[23] But, "the 'reasonable man'
test is retained as a factor to be considered with all the
others in the determination of the issue of
justification.'"[24]

Typically,
a defendant satisfies the credible evidence threshold
"if the defendant's rendition of events, if taken as
true, would entitle [her] to the [self-defense]
instruction.'"[25] Credible is defined as "capable
of being believed.'"[26]

As the
Delaware Supreme Court noted in 1944 (and as is provided in
section 464), deadly force cannot be justified when a
defendant can safely retreat:

Ordinarily, one who is attacked, even if the attack is of
such character as to create in his mind a reasonable
belief[27] that he is in danger of death or great
bodily harm, is under the duty to retreat, if he can safely
do so, or to use such other reasonable means as are within
his power to avoid killing his assailant; for no one may take
the life of another, even in the exercise of the right of
self-defense, unless there are no other reasonably available
means of escape from death or great bodily
harm.[28]

Background

The
events that gave rise to Smith shooting the Victim got
started with gunfire at a different apartment complex the
night before.

Carvel
Gardens

The
Victim was hanging out in his car in a parking lot at Carvel
Gardens, an apartment complex in Laurel, Delaware. There were
a number of other people doing the same thing there. Smith
was hanging out with several friends in a parking lot at
Hollybrook, an apartment complex also in Laurel, Delaware.
They were drinking and smoking weed. Smith drove to the
parking lot where everyone was hanging out at Carvel Gardens.
Smith got out of her car, screamed "I ain't never
scared" and "You don't want it with me, "
and then shot a gun into the air. Smith then got back in her
car and drove away. Smith spent the rest of the night
drinking and using drugs.

Seaford
Meadows

The
next day Smith drove over to Seaford Meadows to hang out. The
Victim, his girlfriend and two of their friends drove over
there to drop off the two friends. As Smith was driving out
of Seaford Meadows, the Victim was driving into Seaford
Meadows. Smith and the Victim saw each other and stopped in
the parking lot with their cars facing in opposite directions
about five feet apart. Smith and the Victim got into a verbal
altercation over the shooting the previous night at Carvel
Gardens. Smith got her gun from under her car seat and walked
over to the Victim's car and stated "You want me to
shoot you?" Smith then stuck her gun through the
Victim's open car window and shot the Victim three times
while he was sitting in his car. Smith also shot and injured
the Victim's girlfriend. Smith then got back in her car
and drove out of the parking lot, nearly running over a
worker in the process. The Victim died at the scene. Smith
was later captured in Georgia.

Carvel
Gardens Cintoria Jacobs and I had rented a room for a
week at the Relax Inn in Laurel, Delaware. Santia Jacobs,
Cintoria's sister, lived in Carvel Gardens. Cintoria and
I were back and forth between the Relax Inn and Carvel
Gardens.

The
night of July 26, Cintoria Jacobs, Santia Jacobs, Ambria
Smith and I were sitting in my car across from Carvel Gardens
in the parking lot of Hollybrook Apartments. We were just
sitting in my car drinking alcohol and smoking weed. I got a
cell phone call from my sister Tremell's boyfriend,
Devon. Devon said that some of our friends had just been in a
fight and had just arrived at my sister's house. Devon
wanted us to come over, so I drove over to Carvel Gardens,
and we were all outside in the parking lot socializing. By
the time I got over there they were all drinking alcohol and
playing music. There were two cars of people and the Victim
was in the group with his car. We were all just hanging out
there in the parking lot for about fifteen minutes. Finally,
Devon came out of my sister's apartment and I asked him
what had happened at the fight. I was sitting in my car,
which was a few feet from the Victim's car and the rest
of the people. I got out of my car and walked over to where
they were. I smoked weed with them and talked awhile. I guess
we were all getting pretty loud at that time. A friend of
mine, Gary, got my gun out from under the seat of my car and
fired one shot in the air. People shooting in the air is a
pretty regular thing around there. After Gary fired the shot
everyone left the area because they thought the police may be
called. The Victim's group went back to Seaford and I
drove with Cintoria, Santia and Ambria back to the Hollybrook
Apartments parking lot. We stayed there until 12:00 a.m. and
then Cintoria and I went back to the Relax Inn where we
stayed for the rest of the night. Between Cintoria, Santia
and me, we drank a pint of liquor and smoked a couple
marijuana blunts that night. I also had taken one Ecstasy
pill that night.

Seaford
Meadows

The
next morning, July 27, I got up around 10:00 a.m. Cintoria
was still sleeping when I left the Relax Inn. I then drove to
the Seaford Roses, where I purchased some clothes. I left
Roses and drove to Seaford Meadows. I went there to socialize
with others that morning and hang out there. This is what I
usually did was hang out there, socialize, and smoke weed
with others. I never did know where the Victim lived. It was
early and there was no one out around Seaford Meadows yet.

As I
was driving out the other end of the complex, the Victim was
driving in. The Victim pulled his car in front of mine,
blocking my exit. I stopped and then he pulled up beside me.
There was about five feet between our vehicles as we were
parked side by side in opposite directions. I at first
thought the Victim either wanted to buy crack or sell me some
marijuana. But the Victim said, "You pulled a gun out on
me last night." I said, "What are you talking
about?" The Victim seemed very upset at this point. I
reached under my seat, got my gun and sat the gun on my lap.
I then said, "What makes you think I would pull a gun
out on you?" The Victim kept cussing and calling me a
bitch. The Victim had gotten out of his car and was standing
just outside the driver's door at this point. He then sat
back inside the car, leaving his door open. I then saw his
foot go up in the air and he was leaning toward the passenger
side of his car. I automatically thought he was going after a
gun. I jumped out of my car, standing just outside my door
and started shooting at him. I think I fired two or three
shots. I had the gun pointed at the Victim, but I didn't
know if I had hit him or not.

I then
got back in my car and drove down the road by the Flagship,
where I left the car and gun. I called Santia on my cell
phone to see if she could come get me. I then hid in a bunch
of trees until they came. I had Ambria Smith, Santia Jacobs
and Cintoria Jacobs take me to Salisbury, Maryland. They did
and dropped me off in a drug area and I paid a crack head to
stay at his house for the night. At 2:00 a.m. the next
morning I called a cab to take me to the bus station in
Salisbury. I then got the bus to Georgia.

I had
never seen the Victim with a gun before and no one knew I had
a gun either. It is not something you showcase, but in the
environment I lived it is thought that others have guns. My
plans were not to go out and kill somebody, especially
someone that I hung out daily with. This was not intentional,
premeditated, or out of any kind of malice. Basically, I
thought the Victim was reaching for a gun and I shot him to
protect myself.

The
Murder Weapon

I
purchased the .357 handgun earlier that month, in July, from
a guy by the nickname of "Face." I paid him over a
hundred dollars for the gun and he also gave me a box of
bullets with the gun. I never loaded the gun or shot the gun
before that day.[30] I always kept the gun under the seat of
my car. Cintoria's baby's father had a gun and he was
always threatening me because of the lesbian relationship
Cintoria and I had. I also purchased the gun for my
protection while selling drugs. Other drug sellers were being
robbed of their drugs, so I wanted the gun for protection. I
kept the extra ammunition for the gun at Santia's house.

Smith's
Relationship with the Victim

I was
supporting myself by selling crack cocaine. I would buy the
crack and re-sell it. I was selling about an ounce a day. The
Victim was selling marijuana and he was purchasing his crack
from me. I have known the Victim since the beginning of 2007.
I knew him through a mutual friend. I considered the Victim
to be a friend and I had contact with him almost every day.
The Victim and I had never had an argument before and as far
as I knew there was no problems in our relationship.

I knew
Jalissa Cannon since we were four or five years old and we
were friends. I didn't know Ardelia Thomas-Parker. I have
known Angela Blackwell for a couple of years now. I had
nothing against any of them. It was just a chance meeting
with the Victim that morning.

The
Witnesses at Carvel Gardens

Ardelia
Thomas-Parker, Keosha Gibbs, Darnell Albury, Gerald Harris,
Lamar Correa and Chantel Correa all told the police they were
at the Carvel Gardens Apartment Complex and saw Smith shoot a
gun in the air. Chantel Correa and Darnell Albury told the
police that Smith said "I ain't never scared."
Gerald Harris told the police that Smith was screaming
"You don't want it with me." Ambria Smith told
the police that she was sitting in her car at Carvel Gardens
and saw Smith being approached by two vehicles full of
people. Ambria Smith added that Smith pulled out a gun and
fired it into the air, causing the vehicles to stop. The
other six witnesses and Smith herself do not mention the
vehicles approaching Smith.

The
Shooting Witnesses

The
Victim's Car

There
were four people in the Victim's car at the time of the
shooting: the Victim, Jalissa Cannon, Angel Blackwell and
Ardelia Thomas-Parker.

Jalissa
Cannon

Jalissa
Cannon was sitting next to the Victim in his car. Jalissa
Cannon gives the most detailed description of what happened.
Angel Blackwell, the Victim, Ardelia Thomas-Parker, and
Jalissa Cannon left the Quality Inn[31] in the Victim's
vehicle. The Victim was driving. Jalissa Cannon was in the
front passenger seat. Blackwell and Thomas-Parker were in the
back seat. They headed towards Seaford Meadows to pick up
Darnell Albury and drop off Blackwell and Parker. They had
turned into the first entrance to Seaford Meadows (closest
entrance to Norman Eskridge Highway). The Victim saw Smith
and stopped the car and Smith did the same. The Victim said
"there is the bitch that shot at us last night."
Cannon asked the Victim why he was stopping the vehicle and
he informed her that Smith had pulled a gun out on him the
night before. The Victim put the car in park to talk with
Smith. The Victim then said to Smith "when you pulled
out the gun recently was it meant for me because I don't
play that gun stuff." Smith replied to the Victim that
"if I pulled it out on you I would have did it."
Smith reached underneath her seat and obtained a black
handgun and exited her vehicle towards the Victim. Smith
pointed the gun at the Victim and asked him "You want me
to shoot you?" Both Smith and the Victim had their car
doors open while arguing as the Victim attempted to exit the
vehicle Smith shot the Victim several times. Jalissa Cannon
also said that the Victim tried to get into the back of the
vehicle and that Smith kept shooting.

Angel
Blackwell

Angel
Blackwell was asleep in the back of the Victim's car at
the time of the shooting. The shots woke Angel Blackwell up.
Angel Blackwell saw Smith get into a blue station wagon and
drive away "like nothing was going on."

Ardelia
Thomas-Parker

Ardelia
Thomas-Parker was sitting behind the Victim listening to
music with her eyes shut. Ardelia Thomas-Parker heard the
Victim talking. Ardelia Thomas-Parker heard gunshots, opened
her eyes, and saw Smith with her arm in the window shooting.
The Victim had his hands on the wheel, his foot on the gas
and was trying to leave. The Victim was leaning with his head
between his seat and Blackwell's seat. Ardelia
Thomas-Parker told Blackwell to get the Victim's foot off
the gas pedal, but she could not do so. Ardelia Thomas-Parker
took the keys out. Ardelia Thomas-Parker got out of the car
and saw that the Victim had been shot in the left side of his
back.

The
Witnesses in the Parking Lot at Seaford Meadows

There
were eight other witnesses to the shooting in the parking lot
at Seaford Meadows.

Michael
Tuxwood

Michael
Tuxwood was in the doorway of Unit 79 in Seaford Meadows.
Michael Tuxwood saw a large maroon car and a station wagon
parked in opposite directions. Michael Tuxwood heard yelling
and the three "pops." Michael Tuxwood saw a
passenger run out of the maroon car screaming. The throttle
on the maroon car was wide open. The station wagon sped away
and almost hit a guy at the job site. Michael Tuckwood ran up
to the maroon car. The guy looked dead and he was "stuck
holding the throttle."

Gerald
Finkbiner

Gerald
Finkbiner was unloading a delivery truck when he heard a
woman shouting. Gerald Finkbiner stepped around the truck and
saw a black girl get out of her car and shoot a guy through
the car window three times. The black girl then got back
inside her car and left, almost running over Gerald
Finkbiner.

Aaron
Conner

Aaron
Conner heard three shots coming from the front section of
Seaford Meadows. Aaron Conner walked to the front and saw the
"suspect" laying across the driver's seat of a
maroon four door sedan.

Samuel
Wilson

Samuel
Wilson heard three shots. Samuel Wilson ran towards a maroon
four door sedan and saw a black male slumped over in the
driver's seat. Samuel Wilson heard a car "peel out
of the development."

Zackery
Nellams Zackery

Nellams
was standing in back of a work truck when he heard a male and
female arguing. The female got out of her car and shot at the
male three times. The female got back into her vehicle and
sped off.

Richard
Laberge, Jr.

Richard
Laberge, Jr., saw a black male laying down in his car after
hearing three shots.

Patrick
Gill

Patrick
Gill saw an African American male and female have an
altercation with each other. The female was the aggressor in
the argument. The female stepped out of her car and fired
three shots at the male driver of the other car. The female
then got back in her car and drove off.

Jason
Ribolla

Jason
Ribolla heard an argument between a male and female. Jason
Ribolla heard three shots and "saw a lady take off very
quickly." Jason Ribolla saw the male that got shot
release his muscles and then fall over in the car.

Smith's
Argument Regarding the Shooting Witnesses

Trial
Counsel did review the statements that the Shooting Witnesses
gave to the police. Smith has not offered any additional
information from the Shooting Witnesses. Thus, the only
information for me to consider is what Trial Counsel
considered.

The
Shooting Witnesses Do Not Support Smith's Self-Defense
Claim

The
Shooting Witnesses do not support Smith's self-defense
claim. When you boil it all down the evidence shows that 1)
the Victim and Smith got into a verbal altercation where one
of the Shooting Witnesses said that Smith was the aggressor,
2) Smith got her gun from under the seat of her car, 3) Smith
then got out of her car and walked over to the Victim's
car and pointed her gun at the Victim and stated "You
want me to shoot you?", 4) Smith then stuck her gun
through the Victim's open car window and shot the unarmed
Victim three times while he had his foot mashed on his
car's accelerator trying to get away from her, and 5)
Smith then got back in her car and fled so quickly that she
nearly ran over a man unloading a truck near the parking
lot's exit.

The
Victim Had No Gun

Smith
said she thought the Victim was reaching for a gun. None of
the Shooting Witnesses saw the Victim reach for a gun. Smith
never said that the Victim actually had a gun and none of the
Shooting Witnesses saw the Victim with a gun. The police did
not find a gun in the Victim's car. Quite simply, Smith
shot an unarmed man.

The
Victim Did Not Threaten Smith with Harm

None of
the Shooting Witnesses said that the Victim threatened Smith
with harm. Smith herself does not say that the Victim
threatened her with harm.

Smith's
Car was not Blocked In

Smith
said that her car was blocked in by the Victim's car.
That was not the case. No Shooting Witness ever said that was
the case. The video clearly shows that Smith's car was
not blocked in by the Victim's car. Smith could have gone
either forwards or backwards if she felt threatened by the
Victim. Smith did neither. Instead, Smith got out of her car
and walked over to the Victim's car and shot him three
times. Smith then drove her car out of the parking lot
without any trouble. This alone defeats Smith's
self-defense claim because she could have safely left the
scene without shooting the Victim.

Smith's
Tattoo and Screams

Smith
had "Thug Angel" tattooed on her body. At the
shooting at Carvel Gardens, witnesses heard Smith scream
"I ain't never scared" and "You don't
want it with me." This is the trifecta of bad things. It
is going to be hard for a person who fancies herself as
"Thug Angel" and who screams "I ain't
never scared" and "You don't want it with
me" and then shoots a gun in the air amidst a crowd of
people who, according to all of the witnesses except
Smith's sister, were not threatening her in any way one
night to argue the next day that she was acting in
self-defense when she got out of her car and walked over to
an unarmed man sitting in his car and shot him three
times.[32]

Smith
Shot the Victim in the Back

Smith
shot the Victim three times. One of the shots was in the
Victim's back. Jalissa Cannon, the Victim's
girlfriend, told the police that the Victim was trying to get
into the backseat of his car while Smith was shooting. This
would explain how the Victim got shot in the back. It also
shows that the Victim was trying to get away from Smith, not
get to her. It is hard to argue self-defense when you have
shot your alleged aggressor in the back.

The
Victim was Trying to Get Away From Smith

A
number of the Shooting Witnesses described the Victim's
car as revving. Some of the other Shooting Witnesses
described the Victim as having his foot on the accelerator
while the shooting was taking place and afterwards. It is
obvious that the Victim was trying to get away from Smith.
Unfortunately, the Victim, in the heat of the moment, forgot
to put his car in gear.

Smith
Reached Through the Victim's Car Window and Shot Him

A
number of the Shooting Witnesses told the police that Smith
got out of her car and walked over to the Victim's car
and stuck her gun through his open window and shot the
Victim. This shows that Smith was the aggressor and is
devastating to her self-defense claim. It also shows that the
Victim was not the aggressor.

Smith
Shot a Friend

Smith
and the Victim were friends who never had any problems with
each other and saw each other almost daily. Smith never knew
the Victim to have a gun and certainly had no cause to fear
him. The Victim was a young, skinny man who bought drugs from
Smith. This does not support Smith's self-defense claim.

Video

The
video of the shooting is devastating to Smith's
self-defense claim. The video shows the Victim sitting in his
car and Smith standing outside the door of the Victim's
car. The video further shows Smith then getting back in her
car and driving away with nothing blocking her flight.

Flight

Smith
fled after shooting the Victim. Indeed, Smith fled so quickly
that she nearly ran over a worker unloading a truck in the
parking lot. Smith then boarded a bus and fled the State.
Smith got as far as Georgia before she was caught. Smith
places great emphasis on her subjective state of mind,
stating that she thought the Victim was going for a gun.
Unfortunately for Smith her flight is an objective
manifestation of her state of mind. In other words,
Smith's flight was evidence of her consciousness of
guilt. Had the case gone to trial, Smith would have been
confronted with a jury instruction stating that her flight
was consciousness of her guilt in shooting the Victim. It is
much harder to argue self-defense when you run. Smith, if she
really believed she was acting in self-defense, should have
stayed at the scene and told the police that she shot the
Victim to protect herself from him. Smith's own actions
seriously undermined her self-defense claim. The old adage is
that actions speak louder than words. Smith's actions
suggest that she thought she was guilty.

In
summary, the Shooting Witnesses do not support Smith's
self-defense claim. Indeed, the Shooting Witnesses seriously
undermine it.

The
Non-Shooting Witnesses

Smith
gave Trial Counsel a list of witnesses that she wanted him to
interview because they would have allegedly supported her
self-defense claim by providing information about Smith's
state of mind at the time of the shooting.[33] Trial Counsel
did not interview them. These witnesses would have told Trial
Counsel the following:

1. Smith told a number of people that she was acting in
self-defense. 2. Smith carried a gun because some men had
approached her "for a forceful relationship."

3. Smith was afraid of Tehron West. Tehron West and Cintoria
Jacobs have a child together. Cintoria Jacobs and Smith were
in a romantic relationship. Tehron West did not like that and
kept Smith in fear because of it.

4. Smith was under constant pressure and harassment about her
...

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